This
opinion is subject to editorial correction before final publication.

Judge BAKER
delivered the opinion of the Court.

On August 4, 2000, at Okinawa,
Japan, Appellant was
tried by a general court-martial composed of a military judge alone.
Consistent with his pleas, Appellant was convicted of three specifications of
conspiracy to commit larceny, two specifications of failure to obey a lawful
general order, three specifications of larceny, and four specifications of
housebreaking, in violation of Articles 81, 92, 121, and 130, Uniform Code of
Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881, 892, 921, and 930
(2000), respectively. He was sentenced to a bad-conduct discharge,
confinement for two years, total forfeiture of all pay and allowances, and
reduction to the lowest enlisted grade. On April 5, 2001, in accordance with a pretrial agreement,
the convening authority approved the sentence but suspended all confinement in
excess of twelve months. On October
31, 2002, the Navy-Marine Corps Court of Criminal Appeals affirmed
the findings of guilty and the sentence in an unpublished opinion. United States v. Barton, NMCM 200100732 (N-M. Ct. Crim. App. 2002).

This Court
granted review of the following issue:

WHETHER THE LOWER COURT ERRED IN FINDING APPELLANT’S PLEA OF GUILTY TO
SPECIFICATION 2 OF CHARGE I PROVIDENT WHERE THE MILITARY JUDGE FAILED TO ELICIT
A FACTUAL BASIS FROM THE ACCUSED THAT THE OBJECT OF THE CONSPIRACY WAS LARCENY
OF MERCHANDISE OF A VALUE OF MORE THAN $100 (AS OPPOSED TO LARCENY OF
MERCHANDISE OF SOME VALUE).

Facts

The stipulated facts pertinent to the granted
issue reveal that Appellant and several other enlisted men engaged in a series
of break-ins at Kadena Air Force Base and CampHansen on the island
of Okinawa. Two of these
break-ins included the Powerzone, an electronics
store on CampHansen.
On June 21, 2000, Appellant
along with two other enlisted men broke into the Powerzone
with the intent to steal merchandise. The theft was unsuccessful,
however, since one of the internal building doors was locked. Appellant
and his co-conspirators returned to the Powerzone on June 22, 2000, broke in, and stole
approximately $10,000 worth of electronic equipment including watches,
camcorders, compact discs, video games, and DVDs.

These events gave rise to Charge I, which
contained three specifications of conspiracy. Each of the three
specifications alleged that the object of the conspiracy was larceny of goods
with a value in excess $100. Prior to explaining each of the offenses,
the judge requested that Appellant keep the charge sheet in front of him so
Appellant could “follow along on your copy of the charge sheet as I list the
elements of the offenses for you.” During the Care inquiry of
Charge I, Specification 1, the judge defined and
explained the four elements of larceny as they pertained to Appellant’s
specification, including the required dollar amount. SeeUnited
States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). After describing
the elements involved in Specification 1, the judge asked Appellant, “Do you
understand the elements of the offense of larceny[?]”
Appellant responded, “Yes, sir.” The judge further questioned Appellant
about the elements.

Numerous specifications on this charge
sheet would normally require me to advise you again and again of the crime—the
elements of the crime of larceny and the definitions associated with that
crime. In the interest of time, we could dispense with me reading that to you
over and over again if you can assure me that you understand the elements of
the crime of larceny and the definitions that I have given you. Do you
understand all of those elements for sure and those definitions?

At the completion
of the judge’s question, Appellant once again responded, “Yes, sir.” The
judge also advised Appellant that if he got confused about any of the elements
or definitions he should stop the judge.

The military judge
asked Appellant if he would like to have the elements of larceny restated prior
to his inquiry with respect to Specification 2, which concerned the alleged
conspiracy to commit larceny of goods with a value in excess of $100 from Powerzone on June
21, 2000. The judge noted, “The only difference between that
set of elements that I gave you earlier and the elements that apply to this
offense is the owner of the property alleged. In this specification, the
owner of the property is alleged to be the Power Zone (sic).” At that
time, Appellant once again acknowledged that he understood the elements of
larceny as they applied to his case. The same procedure was followed
regarding the third specification of conspiracy in Charge I, which resulted in
the larceny of goods valued over $10,000 from Powerzone.
At the close of the Care inquiry, the judge ultimately asked Appellant
whether Appellant believed and admitted that “taken together” the elements,
stipulation of fact, and the Care discussion described what Appellant
had done “on each occasion?” Appellant responded, “Yes, Sir.”

Appellant argues
that his plea to Specification 2 of Charge 1 lacks a factual basis
substantiating each element of the offense. In particular, Appellant
argues that nowhere in the Care inquiry did he admit to conspiring to
steal property of a value more than $100 on June 21, 2000. Nor can such a factual predicate be
inferred from the elements of other offenses for which Appellant was charged
and to which he providently pleaded. According to Appellant, the fact
that he stole $10,000 in merchandise from the store on June 22, 2000, does not establish that he
conspired to steal over $100 in merchandise from the same store one day
earlier. In short, a plea must stand on its own four legs, with a factual
basis for each element of each offense.

The Government
responds that the record as a whole establishes each element of the
offense. Further, there is nothing in the record that suggests
Appellant’s plea to this offense was not knowing, voluntary, or complete.
Appellant understood the value of the merchandise in question and admitted to
this element of the offense. Thus, the purpose of Care and its
progeny are satisfied.

Discussion

“[A] guilty plea
is an admission of all the elements of a formal criminal charge[.]”
Id. at 539, 40 C.M.R. at
251 (quoting McCarthy v. United States, 394 U.S.
459, 466 (1969)). Therefore, before accepting a guilty plea, a military
judge must explain the elements of the offense and ensure that a factual basis
for each element exists. United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996).
“It is not enough to elicit legal conclusions. The military judge must
elicit facts to support the plea of guilty.” United States v. Jordan,
57 M.J. 236, 238 (C.A.A.F. 2002)(citing United
States v. Outhier, 45 M.J. 326, 331 (C.A.A.F.
1996)). This factual predicate is sufficiently established if “the
factual circumstances as revealed by the accused himself objectively support
that plea . . . .” United
States v. Davenport,
9 M.J. 364, 367 (C.M.A. 1980). As a result, “the issue must be
analyzed in terms of providence of his plea not sufficiency of the
evidence.” Faircloth, 45 M.J. at 174.

When considering
the adequacy of the plea, this Court considers the entire record to determine
whether the dictates of Article 45, UCMJ, 10 U.S.C. § 845 (2000), Rule for
Courts-Martial 910, and Care and its progeny have been met. Jordan,
57 M.J. at 239. We will not overturn the
acceptance of a guilty plea unless there is a “substantial basis in law and
fact for” doing so. United
States v.
Prater, 32 M.J. 433, 436 (C.M.A. 1991).

In the specification
at issue, Appellant was charged with conspiracy to commit larceny of property
with value more than $100. The specific elements of larceny are specified
in the Manual for Courts-Martial, United States (2002 ed.)
[hereinafterMCM], Part IV, para.
46.b.(1):

(a) That the accused wrongfully
took, obtained, or withheld certain property from the possession of the owner
or of any other person;

(b) That the property belonged to a
certain person;

(c) That the property was of a
certain value, or of some value; and

(d) That the taking, obtaining, or
withholding by the accused was with the intent permanently to deprive or
defraud another person of the use and benefit of the property or permanently to
appropriate the property for the use of the accused of for any person other
than the owner.

Article 121 provides for gradations
in the maximum sentence depending on the value and type of the property in
question.*

Appellant was charged with three
specifications of larceny and conspiracy to commit larceny. “In the
interest of time,” the judge elected not to repeat the elements for each
offense during his Care inquiry, but rather established the relationship
of fact to law by cross-referencing his predicate statement of elements.
As a result, at no point during the Care inquiry regarding Specification
2 did Appellant admit in declaratory fashion that he intended to steal more
than $100 in merchandise. Nor did the stipulation of fact specify the
value in question. Rather, any such admission must be found in
Appellant’s acknowledgement that he understood the elements of Specification 2,
which included a value of more than $100, and that his conduct fit the elements
of larceny.

Although we may
have doubts that a similar methodology of cross-reference will work generally,
it did not amount to error in this case. Reviewing the Care
inquiry in whole, we are satisfied that Appellant understood the elements of
conspiracy to commit larceny, understood that the elements included a property
valuation of over $100, and affirmatively admitted to the military judge that
his actions satisfied this element of the offense. First, when the judge
listed the elements at the outset, Appellant told the judge that he understood the
elements of larceny, including the $100 value requirement. Moreover, the
judge did not take “yes” for an answer, but took care to test the answer and
asked Appellant whether he in fact understood the elements and understood that
he could ask for them to be repeated at any time. Further, the judge
required Appellant to follow along during the Care inquiry using his
charge sheet. Because Specification 2 contained the phrase “of a value
more than $100.00,” and the judge informed Appellant of this element, it is
reasonable to conclude that Appellant was aware of the elements to which he was
pleading.

In reaching this conclusion, we are cognizant that
we are considering element (c), property of a value more than $100. SeeMCM, Part IV, para.
46.b.(1)(c). This is not a complex legal
element. An understanding of this element does not require an intricate
application of law to fact. Moreover, Appellant’s admission to this
element involved more than simply his agreement with a legal conclusion, as the
element itself contains a specific factual threshold. Therefore,
Appellant’s admission to this element was an admission to law and fact.
Thus, this case is distinguishable from Jordan,
where the Appellant was asked for a legal conclusion as to whether his conduct was
service discrediting, without explanation as to why leaning on a boat might fit
that legal element. 57 M.J. at 239. This
case is also distinguishable from United States v.Hardeman, for
Appellant did not say anything during the Care inquiry that was factually
inconsistent with the charged offense or an admission of guilt to that
offense. 59 M.J. 389 (C.A.A.F. 2004). Nor
is this a case where Appellant has pleaded guilty to something he factually did
not do as was the case in United States v. Pinero,
M.J. ___ (C.A.A.F. 2004)(attempting to plead to
a continuous unauthorized absence when the record established an interrupted
period of absence). The question here, is
whether the record says enough to objectively support an admission to each
element of the offense.

We cannot lose sight that this is a guilty plea
case. As this Court indicated in Jordan,
“a guilty plea case is less likely to have developed
facts . . . .” Jordan,
57 M.J. at 238. With the benefit of appellate
hindsight, one might well identify questions unasked or be tempted to look for
the factual development that only a contested trial might contain.

At the same time, we cannot lose sight that in a
guilty plea case the Care inquiry is a substitute for a contested
trial. 18 C.M.A. 535, 40 C.M.R. 247. By
pleading guilty, an accused is relinquishing significant constitutional
rights. He also spares the victim and the government the costs and
consequences of a trial. As a result, Appellant’s desire to plead guilty
should not obscure the necessity of establishing each element to each offense;
speed and economy must cede to care.

For the reasons stated above, we are satisfied that
each element of Specification 2 of Charge 1 was established. Therefore,
there is no substantial basis in law and fact to question Appellant’s guilty
plea to Specification 2.

Conclusion

The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.

FOOTNOTE:

* At the time of trial, Article 121
allowed increased punishment for the larceny of property in excess of
$100. Manual for Courts-Martial, United
States (2000 ed.), Part IV, para. 46.e.(1). Article 121
now provides increased punishment for property in excess of $500. MCM, (2002 ed.), Part IV, para.
46.(e).(1)(a).

ERDMANN, J. dissenting:

I respectfully
dissent. In my view, there is an inadequate factual basis to support
Appellant’s plea of guilty to conspiracy to commit larceny of merchandise of a
value of more than $100. As I believe that there is an adequate factual
basis to support a plea to conspiracy to commit larceny of merchandise of some
value, I would affirm the guilty plea to that extent. I would further
find that the error was harmless with respect to the sentence and affirm the sentence.

The charges and specifications relating to
conspiracy and larceny include:1 conspiracy to
commit larceny and larceny of merchandise of a value of more than $100 from the
Kadena Tennis Pro Shop on May 27 and 28, 2000;
conspiracy to commit larceny of merchandise with a value of over $100 in regard
to an attempted larceny from the Powerzone on June
21, 2000; and conspiracy to commit larceny and larceny of merchandise with a
value over $100 from the Powerzone on June 22.

The specification that is the subject of this appeal
is the conspiracy to commit larceny from the Powerzone
on June 21. Although Appellant and his co-conspirators were successful on

that
date in entering the building in which the Powerzone
was located, they were unable to gain entry to the Powerzone
itself. Therefore, unlike the conspiracy charges relating to the larceny
from the Kadena Tennis Pro Shop and the June 22
larceny from the Powerzone, there was no successful
larceny of the Powerzone on June 21, 2000 and consequently no merchandise
was taken.

Perhaps because there was no successful completion
of this conspiracy to commit larceny, there was no exchange between the
military judge and Appellant concerning the value of merchandise that he and
his co-conspirators intended to steal from the Powerzone
on June 21. Indeed the majority recognizes that “at no point during
Appellant’s providence inquiry regarding Specification 2 did Appellant admit in
declaratory fashion that he intended to steal more than $100 in merchandise.
Nor did the stipulation of fact specify the value in question.” ____ M.J. at (8).

In order to find a
factual basis that Appellant intended to steal merchandise of a value of more
than $100, the majority notes: “[A]ny such
admission must be found in Appellant’s acknowledgement that he understood the
elements of Specification 2, which included a value of more than $100[.]”
__ M.J. at (9).

In United
States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002), this Court set forth a
comprehensive overview of the legal requirements in a providence inquiry:

To guard against improvident
pleas under Article 45, RCM 910(e), Manual, supra, provides: “The
military judge shall not accept a plea of guilty without making such inquiry of
the accused as shall satisfy the military judge that there is a factual basis
for the plea.” In order to establish an adequate factual predicate for a
guilty plea, the military judge must elicit “factual circumstances as revealed
by the accused himself [that] objectively support that plea[.]”
United States v. Davenport, 9 MJ 364, 367 (CMA 1980). It is not enough to elicit
legal conclusions. The military judge must elicit facts to support the
pleas of guilty. United
States v. Outhier, 45 MJ 326, 331 (1996). The record
of trial must reflect not only that the elements of each offense charged have
been explained to the accused, but also “make clear the basis for a
determination by the military trial judge . . . whether the acts or the
omissions of the accused constitute the offense or offenses to which he is
pleading guilty.” United
States v.
Care, 18 USCMA 535, 541, 40 CMR 247, 253 (1969).

Upon appellate
review, this Court will not overturn a guilty plea unless there is a
substantial basis in law and fact for questioning the providence of the
plea. United States v. Russell, 50 M.J. 99, 100 (C.A.A.F. 1999); United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991). We
will consider the whole record, including references to a stipulation of fact,
to find that a guilty plea inquiry is adequate. See,
e.g.,United States v. Sweet, 42 M.J. 183 (C.A.A.F. 1995).

Looking at the
entire record in this case, there is no discussion with Appellant as to whether
he intended to steal more than $100 in merchandise from the Powerzone
on June 21. There is no reference to the value of this merchandise in the
stipulated facts. The only basis that can be found is the following
statement of the military judge, after he listed the elements of larceny in
regard to Charge 1, Specification 1:2

Okay, Numerous specifications on this charge sheet would normally
require me to advise you again and again of the crime -- - the elements and the
definitions associated with that crime. In the interest of time, we could
dispense with me reading that to you over and over again if you can assure me
that you understand the elements of the crime of larceny and the definitions
that I have given you.

Appellant responded, “Yes, Sir.” to
the military judge’s question as to whether he understood the elements and
definitions. The mere recitation of the elements of a crime, however, and
an accused’s rote response is simply not sufficient
to meet the requirements of Article 45, Uniform Code of Military Justice, 10
U.S.C. § 845 (2000), United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247
(1969) and its progeny, or Rule for Courts-Martial 910 [hereinafter
R.C.M.]. In recognition of this requirement, the military judge revisited
Charge I, Specification 1 and specifically elicited Appellant’s response to
each element, including that the merchandise had a value of more than
$100. The military judge failed to conduct a similar inquiry for
Specification 2.

Because of the
requirement for notice pleading in military practice, the specifications of charged
offenses must contain factual allegations. See R.C.M. 307(c)(3). In turn, a military judge recites these factual
allegations within the elements of offenses during a guilty plea inquiry.
I am not aware of a post Care case that found an adequate factual basis
for a guilty plea solely from an accused’s
acknowledgement of the elements of an offense. “[T]he military judge must
elicit ‘factual circumstances as revealed by the accused himself’[.]”
Jordan,
57 M.J. at 238 (quoting United States
v. Davenport, 9 M.J.
364, 367 (C.M.A. 1980)). Appellant himself revealed nothing about value
and nothing about his specific intent to steal items of a value of over $100.3

Appellant’s specific intent to steal merchandise of a value of more than $100
related directly to the maximum punishment. At the time of Appellant’s
trial, the maximum sentence for larceny of property of a value of more than
$100 included five years confinement, whereas larceny of property of a value of
$100 or less included confinement for only six months. SeeManual
for Courts-Martial, United States
(2000 ed.), Part IV, para. 46.e.(1)(a)-(b).
This distinction in the maximum punishment applies also to the offense of
conspiracy to commit larceny. Manual for Courts-Martial, United
States (2002 ed.), Part IV, para. 5.e. The issue on
appeal in this case did not merely involve a simple fact, but rather involved a
distinction of consequence that was not developed properly on the record of
trial.

This
providence inquiry fails to meet the requirements of Article 45, Care
and its progeny or R.C.M. 910. There is simply no factual predicate based
upon questioning of the accused, the stipulation, or other facts in the record
that establishes Appellant intended to steal property of a value over
$100. The omission here is substantial.

I would affirm only so much of the finding of
guilty of Specification 2 of Charge I as provides that Appellant conspired to
commit larceny of merchandise of some value. However, as I am convinced
that Appellant suffered no substantial prejudice with respect to sentencing, I
would affirm the sentence.

FOOTNOTES:

1 Appellant
was charged with three specifications of conspiracy to commit larceny; two
specifications of violating a lawful order (consuming alcohol under the age of
21); three specifications of larceny; and four specifications of housebreaking.

3
A common sense review would lead one to the conclusion that Appellant was
unlikely to conspire to steal less than $100 from the Powerzone
– a conclusion that is supported by the fact that when Appellant was ultimately
successful in breaking into the Powerzone, he and his
co-conspirators stole approximately $10,000 in merchandise. Common sense,
however useful as it is in approaching a variety of legal issues, is not a
substitute for the requirement that the record must contain the factual basis
for a guilty plea.